Pty Ltd
[2020] QLC 26
•17 July 2020
LAND COURT OF QUEENSLAND
CITATION: Conway & Ors v Australia Pacific LNG CSG Transmissions Pty Ltd & Anor [2020] QLC 26 PARTIES: Denis Campbell Conway (applicant) Jill Mary Conway (applicant) Olivia Jane Martin (applicant) v Australia Pacific LNG CSG Transmissions Pty Ltd ABN 52 138 156 466
(respondent)Australia Pacific LNG Pty Ltd ABN 68 001 646 331 (respondent) FILE NO: MER708-19 DIVISION: General Division PROCEEDING: Application to decide a dispute under the Mineral and Energy Resources (Common Provisions) Act 2014 DELIVERED ON: 17 July 2020 DELIVERED AT: Brisbane HEARD ON: 15, 16 & 18 June 2020 HEARD AT: Brisbane MEMBER: PG Stilgoe OAM ORDERS:
1. The application is dismissed. 2. Any submission as to costs must be filed and served within 14 days of the publication of these reasons.
CATCHWORDS: ENERGY AND RESOURCES – GAS – OTHER
MATTERS – where the respondent resource authority
holders constructed a gas pipeline on the applicant
landowners’ grazing property – where the applicants
complained to the respondents about the spread of African
lovegrass on their property – where the respondents
commissioned a weed survey to be carried out on the
applicants’ property – where the respondents’ environmental
scientists took a sample of a vulnerable ooline tree during that weed survey and sent it to the Queensland Herbarium for
identification – where a flora survey trigger map was issued over part of the applicants’ property – whether the
respondents were liable to compensate the applicants for having caused the trigger map to issue and, if so, what was
the quantum of compensation payable – where the
application was dismissed
Environment Protection and Biodiversity Conservation Act
1999 (Cth)
Mineral and Energy Resources (Common Provisions) Act
2014 s 81
Mineral and Energy Resources (Common Provisions)
Regulation 2016
Nature Conservation Act 1992 s 4, s 5
Nature Conservation (Wildlife Management) Regulation
2006Petroleum and Gas (Production and Safety) Act 2004
Comcare v Martin (2016) 258 CLR 467, cited
APPEARANCES: P Ambrose QC (instructed by Alroe Somers & O’Sullivan Solicitors) for the applicants
G Beacham QC, with D Quayle (instructed by OriginEnergy Legal) for the respondents
Background
The Conways bought Tecoma in 2012 with the intention of growing leucaena, a
leguminous plant which provides high protein fodder for cattle. The Conways knew
that ooline existed on Tecoma;[1] in fact, a large paddock in the south eastern corner of
[1] T 1-21, lines 30 to 31; T 1-23, lines 3 to 5; T 1-27, lines 45 to 46.
Tecoma is called “Ooline”. There were already restrictions on the Conways’ ability
to clear vegetation on Tecoma, however, they determined that 10 of Tecoma’s 18
paddocks could be converted to leucaena.
On 6 January 2014, the Conways and APLNG signed an Option for Easement and
Conduct and Compensation Agreement (OECCA) which related to the proposed
construction of part of the Eurombah Pipeline on Tecoma. APLNG exercised the
option and the pipeline was built. It runs from north to south in the western third of
Tecoma.
APLNG also has petroleum leases, an authority to prospect and a petroleum lease
application over the whole of Tecoma. On 5 June 2017, APLNG issued an entry
notice[2] pursuant to these Resource Authorities. The notice covered the whole of the
[2] “Entry notice for private land”, DCC15 to ex 5.
land for the purpose of conducting a site survey “to determine if the site is suitable
for development and to understand any constructability or practical constraints
associated with developing the Land”. One of the activities identified in the entry
notice was to conduct “Investigations and surveys … including, without limitation,
environmental, flora and fauna …”.[3] The notice was valid for 12 months.
[3] Ibid 3.
Claud Zappone and Tim Collins are both environmental scientists. They conducted a
flora survey pursuant to the entry notice on 14 and 15 July 2017. They found what
they thought was an ooline in the south eastern section of Tecoma in the Ooline
paddock. They did not take a sample.
On 4 August 2017, Mr Conway contacted APLNG complaining about the spread of
African lovegrass, which he thought was due to APLNG’s activities adjacent to the
Eurombah pipeline.
In response, APLNG commissioned a weed survey. Aware that they had not taken a
sample of the ooline in July, Mr Zappone and Mr Collins thought that the weed survey
was an opportunity to rectify that oversight.
Mr Zappone and Mr Collins undertook the weed survey on 12 August 2017. While
they were on Tecoma, they revisited the ooline and took a sample. Mr Zappone sent
that sample to the Queensland Herbarium, which confirmed that it was an ooline.
Some background about the vegetation protection mechanisms in place on Tecoma
There are two regimes that protect vegetation on Tecoma.
Some areas of Tecoma are designated as Category B – remnant vegetation under the
Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
The ooline is located close to an area which has been designated a Matter of National
Environmental Significance (MNES) since 2001.[4] The particular area where the
[4] Ex 11, page 7.
ooline is located is also an MNES and has been since 2001. The EPBC Act Protected
Matters Search Tool[5] indicates the presence of other MNES within a 10 km radius of
[5] Department of Agriculture, Water and the Environment, Protected Matters Search Tool (Web page) <
the ooline (see Annexure A). Therefore, Tecoma has areas of vegetation that are
nationally protected.
A new, expanded or intensified agricultural development that is likely to have a
significant impact on a nationally protected area requires an approval under the EPBC
Act,[6] and a flora survey is normally a prerequisite to obtaining that approval.
[6] Attachment 4 to ex 11.
The Nature Conservation (Wildlife Management) Regulation 2006 regulates Flora
Survey Trigger Maps for Clearing Protected Plants in Queensland (FSTM). A FSTM
will show where plants that are endangered, vulnerable or near threatened wildlife are
present or are likely to be present (high-risk areas)[7] and any buffer zone around a
[7] Nature Conservation (Wildlife Management) Regulation 2006 s 248.
high-risk area in which clearing is not permitted.[8] A FSTM must be reviewed at least
[8] Ibid s 249.
every 12 months.[9] The current version of the FSTM must be publicly available.[10]
[9] Ibid s 251.
[10] Ibid s 252.
Version 5 of the FSTM, which was the version in place immediately prior to Mr
suggest that a referral could be avoided
Zappone’s referral to the Queensland Herbarium, showed no protected plants on
Tecoma (Annexure B).
On 1 June 2018, Version 6 of the FSTM issued (Annexure C). Everything within a 2
km radius of the ooline identified by the Queensland Herbarium is shown as high-
risk vegetation.
On 26 June 2019, Version 7.1 issued (Annexure D). The area of high-risk vegetation
largely mirrors the EPBC Act regulated vegetation management map with the addition
of a small, isolated area to the west of the ooline.
An area of high-risk mapping can be removed only if it is established that no
Endangered, Vulnerable or Near Threatened (EVNT) species[11] occur in either the
[11] See Nature Conservation Act 1992 ss 78A, 78B and 79, and schedule dictionary (definition of
high-risk area or within a 100 m buffer zone around the high-risk area. Again, that
normally requires a flora survey.
Senior Counsel for APLNG suggested that the Conways wanted to keep the ooline
secret.[12] That is a very strong allegation, and there is no evidence to suggest that the
[12] T 1-16, lines 7 to 9.
Conways did, in fact, intend to keep the ooline secret. However, the evidence of
Wayne Moffitt, an ecologist engaged by the Conways, is of significant concern (my
emphasis):[13]
[13] Ex 11, pages 9-10. Footnotes omitted.
“(xi) This leaves a small group of highly sophisticated (primarily corporate)
entities that may undertake flora surveys outside of the requirements of protected plants framework to determine obligations under the EPBC Act. If these entities engaged an environmental consultant to complete a flora survey, then there is potential for additional EVNT species to be discovered.
However, as part of an EPBC Act-focused investigation, the entity could carefully brief the consultant to identify and document only those EVNT species that are also MNES. This would allow the landowner to remain
“unaware” of the occurrence on EVNT species that are not MNES.
(xii) If I was advising the Applicant in regard to the need for a
Controlled Action Referral for the proposed development, then I would
by: proposed development). I consider a 20m buffer from individual specimens to be sufficient.
Protecting and buffering all areas of Brigalow TEC and SEVT TEC (as was
intended). Given the low intensity nature of the proposed development, I
consider a 20m buffer sufficient;(xiii) In this sense, there is some limited opportunity for flora surveys to identify EVNT species. However, the survey data would only be used to plan the set out of the proposed development at fine detail. The data would
remain as confidential correspondence between the consultant and the
Applicant. It would only be revealed to a third-party if the DAWE was undertaking a compliance investigation in regard to the proposed development, or it was willingly provided by the Applicant to a prospective purchaser to inform their due diligence investigations.
(xiv) Discovery of additional Ooline (beyond that shown on the FSTM) does raise an issue of the Applicant being (or becoming) aware11 of an EVNT species beyond the FSTM trigger area. However, if each specimen is buffered by 100m, then there is no requirement to obtain a protected plants permit. While this creates a constraint for the proposed development around the EVNT specimens, it does not prohibit continued grazing. Most
importantly though, the EVNT specimens remains known to only the
landowner, and do not become a “beacon” on common environmental
constraint mapping such as the FSTM and the VMSM. I understand that such beacons would affect the value of the Site. This is an issue to
be considered further by the valuers in this matter.”
In his evidence before the Court, Mr Moffitt said that, under Version 5, there was a
low likelihood of finding an ooline because one would not be looking for it.[14]
[14] T 2-25, lines 21 to 23.
The first object of the EPBC Act is to provide for the protection of the environment,
especially those aspects of the environment that are matters of national environmental
significance.[15] Another object of the EPBC Act is to promote the conservation of
[15] EPBC Act s 3(1)(a).
biodiversity.[16]
[16] Ibid s 3(1)(c).
The object of the Nature Conservations Act 1992 is, not surprisingly, to conserve
nature[17] by, among other things:[18]
[17] Nature Conservation Act 1992 s 4.
[18] Ibid s 5.
“(a) Gathering of information and community education etc.
•
gathering, researching, analysing, monitoring and disseminating information [my emphasis] on nature;
• identifying critical habitats and areas of major interest; •
encouraging the conservation of nature by the education and cooperative involvement of the community, particularly landholders;
(b) Dedication and declaration of protected areas […]
(c) Management of protected areas […].”
I fail to see how Mr Moffitt’s suggested course of action meets any of these criteria.
It is of great concern that an ecologist considers it legitimate to structure the EPBC
Act process to allow a landowner to be “unaware” of EVNT species on the land, to
keep EVNT data confidential, not to reveal it to a third party, and to avoid an
environmental “beacon” affecting land value. Horatio Nelson and his telescope would
feel right at home in Mr Moffatt’s company. His approach to vegetation protection is
to be discouraged.
The causes of action
Initially, the Conways claimed damages on a number of bases: breach of the OECCA,
going beyond the scope of the Entry Notice, breach of the Land Access Code,
negligence, breaches of the Mineral and Energy Resources (Common Provisions) Act
2014, breach of the Mineral and Energy Resources (Common Provisions) Regulation
2016, breach of the Petroleum and Gas (Production and Safety) Act 2004 (P&G Act),
and an action for trespass.
By the close of the hearing, the Conways’ claim was restricted to a breach of the
OECCA, compensation under s 81 of the Common Provisions Act either because of
the alleged breach of the OECCA or under the terms of s 81 itself or, in the alternative,
an action in trespass.
At the hearing, the parties could not tell me the basis of the Land Court’s jurisdiction
to decide a claim in trespass. After the hearing, counsel for APLNG provided written
submissions (with which senior counsel for the Conways agreed) that s 363 of the
Mineral Resources Act 1989 gives the Land Court jurisdiction for a claim in
trespass.[19] I do not need to decide this question given my findings in these reasons,
[19] “Submissions of the Respondents on the question of whether the Land Court has jurisdiction to
but I do not disagree with that submission.
APLNG has, properly, conceded that to establish a right to compensation under s 81
of the Common Provisions Act the Conways do not have to prove that there has been
a breach by APLNG or that APLNG lacked authority to enter Tecoma, take the ooline
sample or send it to the Queensland Herbarium. The question of APLNG’s authority
is relevant only to whether there was a breach of the OECCA or whether APLNG
trespassed on Tecoma.
[27] Regardless of the cause of action, the parties agree that the question of
causation/remoteness is the same. The Conways also submit that the measure of
damages is the same, regardless of the cause of action.
Causation/remoteness
Given that causation/remoteness is central to resolving this dispute, I should consider
the issue first. If the Conways don’t establish causation under s 81 of the Common
Provisions Act, where they do not have to prove fault or breach, it follows that they
will not be able to satisfy me in an action for trespass.
[29] Section 81(1) makes APLNG liable to compensate the Conways for any
compensatable effect they suffer caused by any authorised activities carried out by
APLNG or a person authorised by it. “Compensatable effect” is defined[20] to include
diminution of the land’s value,[21] diminution of the use made or that may be made of
the land or any improvement on it,[22] and any cost, damage or loss arising from the
carrying out of activities under the resource authority on the land.[23]
[20] Common Provisions Act s 81(4).
[21] Ibid s 81(4)(ii).
[22] Ibid s 81(4)(iii).
[23] Ibid s 81(4)(v).
The Conways submit that the event which caused them loss is the taking of the ooline
sample and sending it to the Queensland Herbarium. They submit that it is not two
separate acts. They submit that sending the sample to the Queensland Herbarium
resulted in Version 6 which caused a diminution in the value of Tecoma.
APLNG agrees that, if I apply the “but for” test to determine causation, the provision
of the ooline sample to the Queensland Herbarium was connected with the imposition
of Version 6. It submits, though, that s 81 should not be construed by applying the
closest equivalent at common law. It referred me to the High Court’s comments in
Comcare v Martin:[24]
“Causation in a legal context is always purposive. The application of a causal
term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court
that it is doubtful whether there is any “common sense” approach to
causation which can provide a useful, still less universal, legal norm.”
[24] (2016) 258 CLR 467, 479 [42]. Citations omitted.
APLNG submits that in applying Comcare v Martin I must look at the Common
Provisions Act as a whole to determine the meaning of “caused by”.
The main purposes of the Common Provisions Act are, relevantly, to consolidate
particular provisions common to each of the Resource Acts[25] and to assist in
achieving the purposes of each of the Resource Acts.[26] “Resource Act” includes the
P&G Act.[27] The Common Provisions Act is to be read and construed with, and as if it
formed part of, the P&G Act.[28]
[25] Common Provisions Act s 3(a).
[26] Ibid s 3(d).
[27] Ibid s 9.
[28] Ibid s 6(1).
The main purpose of the P&G Act is to facilitate and regulate the carrying out of
responsible petroleum activities and the development of a safe, efficient and viable
petroleum and fuel gas industry in a way that, relevantly, manages the state’s
petroleum resources in a way that has regard to the need for ecologically sustainable
development.[29]
[29] P&G Act s 3(1)(a)(i).
As can be seen from my discussion of the vegetation protection regime over Tecoma,
the Conways’ agricultural activities and APLNG’s resource authority activities exist
within a network of legislation aimed at protecting the environment. APLNG submits
that the interpretation of “caused by” should be informed by that framework, and it
would not be likely that the purpose of the access regime would be served by
construing s 81 of the Common Provisions Act in a way that discourages preservation
of the environment.
An ecological survey is a preliminary activity and, therefore, an authorised activity
under s 81. It is obvious that an ecological survey might reveal some pre-existing
ecological condition that has adverse impacts for the landowner. A soil sample might
show contamination of which a landowner was unaware. A water sample may reveal
unacceptably high levels of a particular contaminant. A fauna survey might reveal the
presence of an animal previously thought to be extinct. And a flora survey might
reveal, as it did here, a vulnerable species.
It cannot be the case that a resource authority holder can be responsible for loss
occasioned by the revelation of an ecological condition that existed on the land
regardless of the resource company’s activities.
If, by taking a flora sample, Messrs Zappone and Collins caused the destruction of
grazing habitat through erosion or the introduction of a weed, then the Conways
would be entitled to compensation.
However, the Conways’ “loss” through Version 6 was not triggered by the referral to
the Queensland Herbarium, or even the report confirming that the tree was, in fact,
an ooline. A team from the Department of Environment and Science (DES)
considered a range of sources and within a rigorous framework when conducting a
review of Version 5.[30] The ooline was one of 3,287 new plants identified.[31] The
review of Version 5 was conducted across the state, not just on Tecoma. The
comprehensive change to the mapping in Version 6 was approved by the Director of
Conservation and Biodiversity Policy at DES.[32] The presence of the ooline would
have been revealed if the Conways had undertaken a flora survey before clearing, as
contemplated by both the EPBC Act and the FSTM. To suggest that APLNG’s action
in taking one sample on Tecoma produced the change in Version 6 is, frankly, absurd
given the numerous people and steps involved in creating that document.
[30] “Metadata: Nature Conservation Act Protected Plants EVNT Flora Species Records Spatial Layer
[31] “Briefing Note – Director: Review and Update of Protected Plants Flora Survey Trigger Map”,
[32] Ibid 3009.
The connection between the taking of the sample and the alleged loss is too remote
to satisfy the test of causation.
What is the quantum of the loss?
If I am wrong about the question of causation, I should decide the measure of the
Conways’ loss.
The valuers agree that the value of the 2 ha directly affected by the “discovery” of the
ooline is $6,600/ha. They also agree that the value of this area is diminished by 50%.
They do not agree that about any other loss. Shaun Salter, a valuer engaged by the
Conways, says that there is an additional diminution in the value of Tecoma which
he assesses at $400,000 plus GST. Tito Lando, a valuer engaged by APLNG, says
there is no additional diminution in the value of Tecoma, but that the Conways will
incur additional expense in experts’ fees giving a total loss of approximately $20,000
plus GST.
The valuers agree that, if a purchaser applied a price discount of 5% or more because
of a FSTM, it would probably show up in the comparable sales.[33] They agree that the
comparable sales show that a FSTM has no effect on the price a purchaser would pay
for land so affected.[34] They also agree that an analysis of the comparable sales, by
inquiring of the purchasers, reveals that the FSTMs had no impact on the prices.[35]
[33] Ex 13, page 28; T 2-70, line 41; T 2-72, lines 1 to 11; T 2-78, line 40 to T 2-79, line 5.
[34] Ex 11, page 32.
[35] Ex 13, pages 10-22; T 2-68; T 2-69, lines 1 to 5.
Despite these agreements, Mr Salter thought that a discount of 2.5% to the balance of
Tecoma was an appropriate discount for the presence of Version 7.1. He justified this
discount in several ways. Firstly, he said that the selling agents he had spoken to
would “assume” that there would be market resistance to a property with a FSTM.
Secondly, he pointed to media coverage[36] critical of the FSTM system. Thirdly, he
relied on his own experience as a rural landowner and producer. Finally, he said that
the discount accounted for the risk that the FSTM on Tecoma would revert from
Version 7.1 to the much more restrictive Version 6.
[36] See annexure 6 to ex 13.
While it is true that this Court is not bound by the rules of evidence,[37] and while it is
true that this Court often allows valuers to act on hearsay evidence when analysing
comparable sales, it is quite another thing to ask the Court to accept vague hearsay
evidence from real estate agents as the basis for justifying a discount to the value of
the subject land.
[37] Land Court Act 2000 s 7(a).
The information that I have about the agents’ perceptions is not compelling. Two
agents have never knowingly sold land subject to a FSTM but “assume” there would
be market resistance. One agent said that he saw no evidence of resistance in one of
the comparable sales and did not expect any in the current market. One agent believed there was some resistance, although he was the agent for a comparable sale in which
there was no evidence of a discount or buyer resistance. The last agent said that he’d
had three discussions with lawyers recently about this topic (the context of which was
not disclosed) and he thought that, perhaps, there would be some resistance. That
agent marketed one of the comparable sales in which the purchaser did not apply a
discount because of the FSTM.
The comparable sales evidence contradicts the agents’ belief. I prefer the evidence of
the comparable sales.
Similarly, the media “noise”[38] is contradicted by the comparable sales. Looking at the
media reports, I see that the criticisms are directed to Version 7, which designated
areas such as the Gabba Stadium as high-risk areas but had no appreciable effect on
Tecoma. Version 7.1 removed those anomalies. A briefing note to the Director-
General of the Department of Environment and Science notes that Version 7.1
“refines mapped areas to include only semi-natural/natural areas that contain remnant
vegetation, high value regrowth, offsets and wetland areas”.[39]
[38] T 2-58, line 42 to T 2-59, line 4; T 2-59, lines 14 to 27.
[39] Ex 24, page 1.
When Mr Salter gives evidence as a landowner and producer, he steps outside his area
of expertise and becomes simply a lay witness giving his opinion. Again, the
comparable sales do not support his view.
If there were any further need to dismiss Mr Salter’s evidence, it is to be found in his
own calculations. He calculated the discount that would have applied if Version 6
were still in place at $720,000.[40] Mr Lando agreed a discount would apply.[41] Mr
Salter’s calculation for the discount for the risk that there might be a reversion from
Version 7.1 to Version 6 was $400,000, over 55% of the discount Mr Salter actually
applied if Version 6 was in place.[42]
[40] Ex 13, page 25.
[41] T 2-60, lines 19 to 46.
[42] Ex 13, page 28; T 2-71, lines 11 to 39.
There is no evidence of any risk of reversion. As I have noted, the FSTM regime is
regularly reviewed and any number of factors may result in a change. To ascribe the
risk of change to one thing – the presence of Version 6 at some time in the past – is
unsustainable.
If there was a loss due to the activities of APLNG, and I find there was not, the
quantum of that loss is limited to $20,000.
Conclusion
Senior counsel for the Conways directed me to Mr Conway’s “heartfelt” evidence:[43]
“‘It distresses me and my family that such ill-considered decisions are made
in the absence of reliable scientific data and without any appreciation for the
inconvenience, cost and heartache it causes for us as landowners.’”
[43] “Closing Submissions on behalf of the Applicants”, filed by the applicants on 17 June 2020 [12].
I have no doubt that the Conways are distressed by these events. Landowners expect
to have total control over the way they manage their land. Unfortunately, the P&G
Act and the Common Provisions Act give resource authority holders rights that
override the interests of landowners. There is a balance between the operations of the
resource authority holders and the operations of landowners which is difficult to get
right.
The Conways’ distress was compounded by the information APLNG provided during
the course of this dispute. They think that APLNG should have provided information
sooner. They think that APLNG was less than frank in its initial communications
about the entry to land. They think that evidence of Messrs Zappone and Collins was
contradictory and self-serving.
I don’t necessarily agree that APLNG should have disclosed the fine detail of its entry
onto Tecoma but I can see how its ex post facto justification did not instil confidence.
Could the APLNG paperwork have been better? Yes. Could they have trained their
environmental scientists better? Yes. Could APLNG have communicated better with
Mr Conway? Probably yes. Would any of that have made a difference to this case?
Probably not. The only thing that could have changed this case is if Mr Conway had
been able to persuade Messrs Zappone and Collins not to engage with the Queensland
Herbarium and make the location of the ooline public. As I have already commented,
I do not consider such an action to be within the ambit of a competent and
conscientious environmental scientist.
The Common Provisions Act does not permit this Court to compensate parties for hurt
feelings, disappointment, or anger at an environmental protection regime. The
Conways’ application must fail.
Orders
1. The application is dismissed.
2. Any submission as to costs must be filed and served within 14 days of the publication of these reasons.
PG STILGOE OAM
MEMBER OF THE LAND COURT
Annexure A
Annexure B
Annexure C
Annexure D
Resource companies operating in Queensland are often criticised for committing
environmental damage. In this unique case, Australia Pacific LNG CSG
Transmissions Pty Ltd and Australia Pacific LNG Pty Ltd (together APLNG) are
being criticised for taking steps to identify and protect a vulnerable ooline tree present
on Tecoma, a property owned by Denis Conway, Jill Conway and Olivia Martin (née
Conway).
The Conways submit that APLNG’s actions in identifying the ooline give them a right
to compensation of almost $700,000.
“wildlife”).
adjudicate the claim in trespass”, filed by the respondents on 8 July 2020.
Ver 6”, subpoenaed document 67 from the Department of Environment and Science, hearing bundle
page 3013.
subpoenaed document 31 from the Department of Environment and Science, hearing bundle page
3008, page 1.
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